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Environmental FoIs & the ‘decision-making onion’

by | Apr 3, 2019 | 0 comments

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Reasons behind an environmental decision are often concealed beneath layers of government process.

By Peter Burnett

Why is it that despite reforms to federal Freedom of Information (FoI) laws, it seems it’s getting more and more difficult to get information out of government on the reasons behind decisions about the environment? These reforms, by the way, declare that embarrassment, loss of confidence in government and public confusion are irrelevant to decisions about whether to release documents. And yet the reforms don’t seem to have helped much.

Where officials might once have claimed substantive exemptions to release, based on grounds like confidentiality, now governments starve FoI processes of funding so that requests are more likely to be strangled by delay or blocked under an exemption based on the request involving an unreasonable diversion of the agency’s resources. Requests are also constricted by charging fees.

Information hidden in layers

Issues of exemptions, delays and fees aside, there can be a question of where to look for pertinent information. Sometimes substantive information is concealed (not necessarily deliberately) under layers of government process. The example that comes to mind is that of decisions concerning the approval or refusal of development projects, following environmental impact assessment (EIA). In the example these decisions are made under the federal Environment Protection and Biodiversity Conservation Act (EPBC Act).

Say you want to know why a minister has approved a controversial project. It’s like an onion: you will have to peel back the layers of advice and deliberation to get to the heart of the matter.

First, there’s the environmental impact statement. You would think this would be a public document, but it’s only public for a limited time, when it is published for public comment. After that you’ll have to make an FoI application. In any event, because it is prepared by the proponent it will tell you about the project but it won’t contain any ministerial thinking. Let’s call this layer 1.

Then there’s the environment department’s ‘recommendation report’, their statutory advice to the minister on whether the development should be approved and, if so, on what conditions (this is layer 2). This is available on application, under the EPBC Act rather than under FoI, although the department can still claim some FoI-style exemptions. Assume however that you’ll get it. As it’s a legal document, it will be couched in formal and evidence-based terms. It will tell you more, but it’s probably not the whole story.

Then there’s the department’s ‘covering brief’ (layer 3) to which the statutory documents are attached. While the brief might blandly transmit the recommendation report and other decisional documents to the minister, equally it might get more directly to the nub of the issue than the recommendation report, and better reveal the ‘flavour’ of the department’s advice. The brief will be available under FoI, subject to the usual exemptions and processes, but a separate application will be needed.

The next layer (number 4) might be advice from a political adviser in the minister’s office. Advisers are not officials, not bound by public service rules or ethics. This advice might be oral or written. If it’s written, it’s still subject to FoI, but in practice it probably won’t be available because often takes an ephemeral form, such as a ‘sticky note’, which might be discarded once the decision is made and the documents returned to departmental custody.

Invisible and hidden layers

The Minister might also meet with the department to discuss its advice. While officials may make a record of the meeting (number 5), such records are often bland: a minister may probe departmental advice, but even if that probing reveals the minister’s political thinking, officials may think that it is not their business to record political comments or inferences.

The minister may also discuss the issue with proponents, lobbyists or other political players, many of whom pride themselves on working invisibly behind the scenes. Such discussions are not likely to be recorded in detail.

There is another process for obtaining reasons (behind decisions), but it doesn’t seem to yield much. Under the Administrative Decisions (Judicial Review) Act (ADJR Act), a person aggrieved by a decision can ask for a formal statement of reasons. The idea is to elicit enough detail about a decision to help the person get legal advice on a legal challenge. The problem is that ministers get government lawyers to draw-up these statements, so they become legally-justifying rather than records of actual thinking. These ‘section 13’ statements are likely to tell you that the minister had regard to all the considerations laid down in the Act and then balanced them carefully in the exercise of discretion. Unless someone’s made a legal mistake in the decision process, it can be a story of ‘move along, nothing to see here’.

Why not just ask?

Rather than wade through FoI processes, there’s always the option of asking. A journalist for example might ask about the reasons for a decision. Politicians of course are legendary for not answering questions.

Another channel for asking is for Senators to ask questions in Estimates Committees. These questions are usually answered by public servants. You could be forgiven for expecting public servants, with their statutory duties of honesty and integrity, and their mantra of ‘frank-and-fearless’ advice, to be straight-shooters. However, in public forums they often aren’t, at least not in response to ‘advice’ questions. This is because public servants ‘advise’ government on policy, but usually do not ‘advise’ other parties.

My experience in Senate Estimates Committee hearings was one of public servants (including myself) answering questions directly, but literally and without elaboration, thereby meeting legal and ethical obligations, but sometimes frustrating Senators who were, in effect, asking for or about advice. Sometimes Senators don’t ask quite the right question, but if they do, the answer might be that the public servant can’t answer because it’s a question about advice!

At the end of the day, you can trust public servants, but they often won’t be much help on the most important questions: the information is concealed by the nature of their duties.

The decision onion

So there you have it. If you try to peel all the layers of the ‘decision onion’, the outer layers will come away easily enough, if slowly, and won’t tell you much. But the inner layers are resistant to removal. Advice from advisers is likely to be ephemeral. Discussions between Ministers and lobbyists or colleagues probably won’t be recorded in detail. An ADJR statement of reasons will be formal and unlikely to offer any real insight. And Estimates hearings won’t reveal advice.

But if you want to know what really was really driving a controversial decision, official processes probably aren’t the way to find out. Perhaps the story will come out years later in a political ‘tell all’ book.

Image by Chris Stermitz from Pixabay



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